Experts: Ariz. Anti-Immigration Law Unconstitutional

April 28, 2010

The new Arizona law criminalizing being undocumented and permitting private citizens to sue for lax enforcement is likely to be struck down in court, according to The New York Times.

The Times reports:

"The law is clearly pre-empted by federal law under Supreme Court precedents," said Erwin Chemerinsky, an expert in constitutional law and the dean of the University of California, Irvine, School of Law.

Since the 1800s, the federal government has been in charge of controlling immigration and enforcing those laws, Professor Chemerinsky noted. And that is why, he argued, Arizona's effort to enforce its own laws is destined to fail.

But even some experts who say they are troubled by the law said it might survive challenges.

"My view of the constitutional question is that it is unconstitutional," said Hiroshi Motomura, co-author of leading casebooks on immigration law and a professor at the University of California, Los Angeles, School of Law. "But it's a far cry from predicting empirically what a judge who actually gets this case will do."


The tests will come soon enough. Civil rights organizations are already planning their suits, said Lucas Guttentag, director of the immigrants' rights project of the American Civil Liberties Union. The law, Mr. Guttentag said, "will increase racial profiling and discrimination against Latinos and anyone who might appear to be an immigrant."

President Obama criticized Arizona's bill last week before it was signed, calling for a comprehensive immigration overhaul as an alternative to such "misguided" efforts. He also asked the Department of Justice to "examine the civil rights and other implications of this legislation."

On Tuesday, Attorney General Eric H. Holder Jr. said the department was considering several options, including a federal court challenge.

The major issue in those challenges will be whether federal law should trump state action

[Image via J. Stephen Conn.]